R.M. Seshadri Vs. K.K. Chari - Court Judgment

LegalCrystal Citation

legalcrystal.com/801360

Subject

Tenancy

Court

Chennai High Court

Decided On

Sep-15-1970

Reported in

(1971)1MLJ90

Appellant

R.M. Seshadri

Respondent

K.K. Chari

Cases Referred

Barton v. Fincham

Excerpt:.....under the acts, without further enquiry. the order on the face of it does not show that the rent controller applied his mind and was satisfied that there was a bona fide requirement of the premises by the landlord for his personal occupation. i am also not inclined to accept the contention of the learned counsel for the respondent that, in the light of the term of the compromise, whereunder the petitioner had withdrawn his defence to the eviction petition and submitted to a decree for eviction unconditionally, it should be treated as a case where the petitioner was satisfied about the bona fide requirement of the premises by the landlord for his own occupation and submitted to the order of eviction and that the court was entitled to proceed on the basis that requirement for..........the respondent entered into a compromise and a memo of compromise was actually filed before the rent controller on 31st march, 1969. on the basis of the said compromise the rent -controller passed the following order:compromise memo filed and recorded. by consent, eviction is ordered granting time to vacate till 5th june, 1969. no costs.since the petitioner did not vacate the premises on 5th june, 1969, the respondent filed e.p. no. 953 of 1969 and a warrant of possession was issued by the lower court under section 18 of the madras buildings (lease and rent control) act, 1960. the petitioner filed e.a. no. 1314 of 1969 to recall the said warrant of possession issued by the lower court and three main grounds on which such a relief was asked were : (1) that the order of eviction passed.....

Judgment:

G. Ramanujam, J.

1. This revision arises out of an application filed by the petitioner (tenant) against the order of the lower Court refusing to recall a warrant of possession issued in E.P. No. 953 of 1969 on its file. The facts leading to this revision may briefly be stated.

2. The respondent herein filed H.R.C. No. 983 of 1968 for evicting the petitioner on the ground that he required premises No. 64, Lloyds Road, Madras bona fide for his own personal occupation. The petitioner contended inter alia that the alleged requirement of the building for owner's occupation is not bona fide that the respondent's purchase from the original owner, Indian Academy of Science, on 23rd October, 1967 was not valid as the premises was inalienable being a trust property. The petition was finally taken up for hearing on 16th January, 1969, when the respondent as P.W. 1 was examined and Exhibits P-1 to P-3 were marked. The enquiry was continued on 25th January, 1969 and 22nd February, 1969 when P.W. 1 was further examined and Exhibits P-4 to P-45 were filed. Exhibit P-45 was an order of -eviction obtained against the respondent by his landlord and this was filed to establish that the respondent's requirement of the premises for his own occupation was bona fide. At that stage both the petitioner and the respondent entered into a compromise and a memo of compromise was actually filed before the Rent Controller on 31st March, 1969. On the basis of the said compromise the Rent -Controller passed the following order:

Compromise memo filed and recorded. By consent, eviction is ordered granting time to vacate till 5th June, 1969. No costs.

Since the petitioner did not vacate the premises on 5th June, 1969, the respondent filed E.P. No. 953 of 1969 and a warrant of possession was issued by the Lower Court under Section 18 of the Madras Buildings (Lease and Rent Control) Act, 1960. The petitioner filed E.A. No. 1314 of 1969 to recall the said warrant of possession issued by the Lower Court and three main grounds on which such a relief was asked were : (1) that the order of eviction passed on the basis of a compromise and by consent was a nullity and was in executable (2) that there has been no proper notice terminating the tenancy of the petitioner as contemplated under Section 106 of the Transfer of Property Act and as such the Rent Controller has acted without jurisdiction in ordering eviction and (3) that once the petitioner has denied the title of the respondent to the premises in question the Rent Controller had no jurisdiction to assume the relationship of landlord and tenant between the petitioner and the respondent and pass an order for eviction on that basis. The Court below rejected the above three contentions and dismissed the application. However, it granted time till 20th April, 1970, for the petitioner to vacate. It is against the said rejection of his application to recall the warrant, this revision has been filed by the petitioner urging the same three contentions as were raised before the Lower Court. As regards the first contention, the learned Counsel for the petitioner submits that the following decisions of the Supreme Court are decisive on the point and that the contentions has to be decided in favour of the petitioner. In Bahadur Singh v. Muni Subrat Dass : [1969]2SCR432 , the Supreme Court held that a decree for eviction passed on the basis of an award was in contravention of Section 13(1) of the Delhi and Ajmer Rent Control Act, because the Court had passed the decree without satisfying itself that any one of the grounds of eviction as set out in Section 13(1) existed. Kaushalya Devi v. K.L. Bansal : [1969]2SCR1048 , was a case where the Court had, in a suit for ejectment under Section 13 of the Delhi and Ajmer Rent Control Act, passed the following order:

In view of the statement of the parties' Counsel and the written compromise, a a decree is passed in favour of the plaintiff against the defendant.

It was held that the said decree passed on the basis of a compromise was in contravention of Section 13(1) of the Act, because the Court had passed the decree in terms of the compromise without satisfying itself whether the ground of eviction pleaded existed, and that the decree directing delivery of possession of the premises to the landlord in such circumstances was a nullity and could not be executed. In Ferozi Lal v. Man Mal : AIR1970SC794 , the Supreme Court again reiterated the same principle as was laid down in the two earlier decisions. Here also a decree directing delivery of possession under Section 13 of the Delhi and Ajmer Rent Control Act had been passed, and the Supreme Court had laid down that the jurisdiction of the Court to pass a decree for recovery of possession of any premises under Section 13 depends upon its satisfaction that one or more of the grounds mentioned therein have been proved, that, where the Court had proceeded solely on the basis of the compromise arrived at between the parties, it was not competent to pass such a decree for recovery of possession, and that such a decree was therefore a nullity. After dealing with the facts in that case the Supreme Court observed:

From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. It is clear from the record that the Court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the Court was not competent to pass the impugned decree. Hence the decree under execution must be held to be nullity.

Relying on the above decisions the learned Counsel contends that the order passed by the Rent Controller was a nullity and was not executable.

3. The learned Counsel for the respondent. however, seeks to get over the above three decisions of the Supreme Court on the ground that the facts in this case are different and that the principle of the above decisions cannot be applied straightaway to this case. He states that apart from the compromise on the basis of which the eviction order was passed, there was enough material before the Court to conclude that the requirement of the premises by the respondent for his own occupation was bona fide that such material was not there before the Courts in the cases dealt with by the Supreme Court. He stated that on the face of Exhibit P-45 filed during the enquiry before the Rent Controller, the Court had no other alternative except to pass an order of eviction on the ground that the respondent (landlord) required the building bona fide for his own occupation and that it was because the petitioner felt that there was no case for him to defend the eviction petition he submitted to an order of eviction being passed against him by entering into a compromise. These facts, it is stated, are sufficient to take the case out of the purview of the said decisions of the Supreme Court.

4. The learned Counsel for the respondent also referred to the decision of the Punjab High Court in Vas Dev v. Milkhi Ram , where Grover, J. (as he then was) held, dealing with an order of eviction based on consent, that where a tenant admitted after a suit for ejectment under Section 13(1) of the Delhi and Ajmer Rent Control has been filed, that the landlord is entitled to possession on one of the statutory grounds, or where the landlord had made some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground on which possession can be ordered and the tenant accepted that representation and submitted to an order, the Court would be fully justified in making a valid order of eviction. The learned Judge took that view after discussing the following English Cases:

The learned Judge had also expressed that where enough material and evidence had come on the record to satisfy the Court as well as the tenant that the ground on which ejectment had been sought by the landlord would be ultimately established, and the tenant enters into a compromise with the landlord, it is implicit that he was admitting the correctness of the grounds which had been taken for his ejectment by the landlord, and in such a case the decree passed on the basis of such a compromise was not a nullity. The learned Counsel also referred to the decision in Jagan Nath v. Jatinder Nath , where also an eviction order had been passed on the basis of a compromise and the question was whether such an order was a nullity and unenforceable. The High Court in that case took note of the fact that the plaintiff's evidence as to personal requirement has been let in and that the defendant thereafter consented to the passing of a decree for ejectment in return for a concession of continued occupation of the premises for a time and held that the Lower Court was fully justified in coming to the conclusion that the defendant admits the strength of the plaintiff's case and consents to a decree for ejectment being passed in return for the concession. The principle of the earlier decision Vas Dev v. Milkhi Ram , was followed in this case. The learned Counsel also took me through the said three English decisions and particularly to the following observations of Bucknill, L.J. in Thorne v. Smith (1947) 1 All E.R. 39 .

But in the present case it is, I thin] reasonably clear that the tenant, ii effect, agreed to the order because at the time when the landlord asked the Court to make the order the landlord by his own statements had satisfied the tenant that he intended to occupy the house himself and he, the tenant, could not hope successfully to resist the claim. If the tenant had stated this expressly in Court the Judge would surely have had jurisdiction to make the order on that ground. I think in the events which happened here, the tenant being legally represented, the Judge was entitled to proceed on the view that this was the true position. Before making an order for possession the Judge is under a duty to satisfy himself as to the truth if there be a dispute between landlord and tenant, but if the tenant in effect agrees that the landlord has a good claim to an order under the Acts, I think the Judge has jurisdiction to make the order for possession under the Acts, without further enquiry.

and of Jenkins, L.J. in Middleton v. Baldock (1950) 1 All E.R. 708 .

I think the Principles deducible from a those cases are that under the Acts the Court only has jurisdiction to order possession on one or other of the specified statutory grounds. The Court, however, is not always obliged to hear a case out, because, if the tenant appears and admits that the plaintiff is entitled to possession on one of the statutory grounds, the Court may act on that admission and make the appropriate order. Again - and this, I think, is an extension of what I have just said - if there is a representation made by the plaintiff-landlord to the defendant tenant to the effect, for instance that the landlord wants the premises for his own occupation - which is one of the ingredients of a ground on which possession may be ordered - and the tenant accepts that representation and on that footing submits to an order the order can validly be made, subject to the possibility that in the event of the representation turning out to have been false the efficiency of the order may be destroyed.

5. On a due consideration of the matter, I am of the view that, having regard to the categorical pronouncement of the Supreme Court in the three decisions above referred to, it has to be held that the order of eviction passed by the Rent Controller in this case on the basis of the compromise entered into between the petitioner and the respondent is a nullity and as such not executable. The eviction order had been passed sole on the basis of the compromise arrived at between the parties and the Rent Controller did not apply his mind to the question whether the alleged bona fide requirement of the landlord has been established or not. The order on the face of it does not show that the Rent Controller applied his mind and was satisfied that there was a bona fide requirement of the premises by the landlord for his personal occupation. Even if there is enough material before the Court when it passed the order of eviction by consent as alleged by the respondent, so long as the Rent Controller had not applied his mind and given his decision in the matter as to whether the respondent was bona fide in requiring the premises for his own occupation, the eviction order cannot be held to be an order passed on merits under Section 10(3) of the Act. Having due regard to the above decisions of the Supreme Court, it is not possible for me to accept the contention of the learned Counsel for the respondent that a finding on merits in favour of the respondent has to be implied from the order of the Rent Controller in view of the existence of adequate material before him to support such an implied finding. I am also not inclined to accept the contention of the learned Counsel for the respondent that, in the light of the term of the compromise, whereunder the petitioner had withdrawn his defence to the eviction petition and submitted to a decree for eviction unconditionally, it should be treated as a case where the petitioner was satisfied about the bona fide requirement of the premises by the landlord for his own occupation and submitted to the order of eviction and that the Court was entitled to proceed on the basis that requirement for owner's occupation had been established and pass an eviction order. In my view when the Legislature has, in clear and unmistakable language restricted the jurisdiction of the Rent Controller to pass orders of eviction only on stated grounds, he cannot pass an order of eviction on the basis of a compromise or on an agreement between the parties or on the basis of the tenant's submission to an order of eviction. It is well established that no agreement between the parties can give the Court a jurisdiction which the Legislature has said it is not to exercise. Atkin, L.J. in Barton v. Fincham (1921) 2 K.B. 291 , said:

The section appears to me to limit definitely the jurisdiction of the Courts in making ejectment orders in the case of premises to which the Act applies. Parties cannot by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have. If the parties before the Court admit that one of the events has happened which give the Court jurisdiction, and there is no reason to doubt the bona fide of the admission, the Court is under no obligation to make further inquiry as to the question of fact; but apart from such an admission the Court cannot give effect to an agreement, whether by way of compromise or otherwise, inconsistent with the provisions of the Act.

The said passage is strongly relied on by the learned Counsel for the respondent in support of the contention that the said terms of the compromise by which the tenant has withdrawn all his defences and agreed to vacate unconditionally should be treated as a bona fide admission on the part of the tenant, and that the Court could straightway pass an order of eviction without any further obligation to make an inquiry as to whether the ground for eviction set up had been established. I am not in a position to construe the compromise as a bona fide admission made by the tenant that the respondent required the premises bona fide for his own occupation. The withdrawal of his defence to the eviction petition by the tenant on certain terms cannot mean that he admitted bona fide that the ground for eviction put forward by the landlord existed. Even in a case where the tenant bona fide admits that the ground of eviction existed, as pointed out by the Supreme Court, the Rent Controller must apply his mind and hold basing himself on such admission by the tenant, that the ground for eviction put forward by the landlord existed and that he is entitled to an eviction order, without solely relying on the compromise. I therefore, hold that the order of eviction passed in this case is in contravention of Section 10(3) of the Act and as such a nullity.

6. The learned Counsel for the respondent then contends that, the compromise having been partly acted upon by the tenant in receiving the sum of Rs. 20,000 as a condition for vacating the premises, he is estopped from questioning the validity of the order of eviction passed on the basis of the compromise. It is also stated that the petitioner cannot approbate and reprobate in taking advantage of the compromise in part and going behind the compromise as regards his vacating the premises. The learned Counsel for the petitioner, however, meets the said contention by saying that there cannot be any estoppel against a statute and that even if he had consented to an order of eviction, the Rent Controller had no jurisdiction to pass an order of eviction merely on the basis of such a consent and that if the order of eviction passed by the Rent Controller is a nullity, the principle of estoppel cannot make a void order valid and legal. I am in agreement with the submission by the learned Counsel for the petitioner on this aspect I of the case and hold that whatever might have happened between the parties as a result of the compromise, the order of [eviction cannot be executed as it is not based on any stated grounds of eviction set out in Section 10(3) of the Act. Once the order of eviction is held to be a nullity and not executable, it will not become executable because the petitioner had taken some advantage in pursuance of the compromise which formed the basis of the eviction order.

7. Since I am accepting the first contention of the petitioner and allowing the revision holding that the eviction order passed by the Rent Controller is a nullity and is not executable, the other questions as to the want of proper notice and the question of jurisdiction of the Rent Controller to pass an order of eviction when the tenant denied the title of the landlord, need not be gone into. Hence I am not expressing any opinion thereon.

In the result, the revision petition is allowed; but, in the circumstances, without costs.